January 20, 2018

Archives for March 3, 2014

The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws

Qusair Mohamedbhia Bio PicBy Qusair Mohamedbhai

It is not every day that lawyers from the ACLU and Focus on the Family share a public stage to debate religious freedoms and workplace anti-discrimination laws. In recent years, tensions between employee anti-discrimination rights in the workplace and religious freedoms of employers have dramatically increased in magnitude and complexity. In the last decade, courts have significantly expanded the rights of religious employers. Additionally, religion-based discrimination charges filed with Equal Employment Opportunity Commission have more than doubled in the past fifteen years. And employees’ rights in the areas of sexual orientation and healthcare have been affected by employers claiming to be governed by faith-based principles.

“The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws,” which was part of a larger CLE in Colorado, Inc. program titled “Workplace Discrimination,” produced a lively and informative discussion. The presenters debated the tension between anti-discrimination laws including the Colorado Anti- Discrimination Act’s inclusion of sexual orientation as a protected class, and laws protecting religious employers’ rights including the Free Exercise Clause and Religious Freedom Restoration Act. As expected, the ACLU and Focus on the Family had divergent opinions on matters related to the contraceptive mandate issued by the U.S. Department of Health and Human Services and religious employer exemptions. The panelists also debated the holdings, reach, and implications of recent high-profile decisions spanning a variety of related topics including the cases of Hosanna-Tabor, Windsor, Hobby Lobby, Abercrombie & Fitch, Little Sisters of the Poor, and Masterpiece Cakeshop Lakewood Bakery. The presenters and moderator demonstrated extraordinary knowledge of these difficult constitutional law matters, as well as theological arguments, historical context, and pragmatic public policy consequences.

Click here to view online

Panelists: Mark Silverstein, Esq., American Civil Liberties Union of Colorado, L. Martin Nussbaum, Esq., Lewis Roca Rothgerber LLP, and Bruce Hausknecht, Esq., Focus on the Family. Moderator: Scott L. Levin, Esq., Regional Director, Mountain States Region, Anti-Defamation League.

Qusair Mohamedbhai, Esq., is a partner at Rathod | Mohamedbhai llc. His practice is exclusively in the areas of plaintiff’s employment discrimination and constitutional civil rights litigation. He advocates for the rights of employees in the workplace, and for the civil rights of all individuals against governmental and institutional abuses of power. He is a National Institute for Trial Advocacy trial skills and techniques faculty member, co-chair of the Employment Law Section for the Colorado Trial Lawyers Association, and General Counsel to the Colorado Muslim Society. He received his Bachelor of Science in biology from the University of Alberta in 2000, and his Juris Doctorate from the University of Wyoming in 2003.


CLE Homestudy: Workplace Discrimination

This CLE presentation took place on January 10, 2014. Click here to order the Video OnDemand, click here for the MP3 audio download, and click here for the CD homestudy. You may also call (303) 860-0608 to order.

Call for Nominations for Trust & Estate Section Sterling Ambler Award

Each year, the CBA Trust & Estate Section presents its Sterling Ambler Award to an outstanding trust and estate attorney who has made significant and multitudinous contributions to the Trust & Estate Section and the legal profession. The Award is given to an individual who has contributed substantially to furtherance of Colorado law, education of others, and the Trust and Estate Section of the Colorado Bar Association. It is named in honor of R. Sterling Ambler, an exceptional attorney who practiced law in Colorado for over 50 years and who gave freely of his time and expertise to individual lawyers, to the Colorado Bar Association, and to the legal profession, until his death in 2004 at the age of 72.

Sterling was skilled in the law, but he also excelled at writing, debating, and refining statutory language and ideas. He worked on many legislative proposals and willingly considered new ideas and developments in the law. His diplomacy and insights were often useful in bridging differences among lawyers, sections of the Bar, and the legislature. He was selfless in advancing the law as a whole over his own personal interests. Sterling Ambler will be remembered for his sense of humor, his quiet unassuming way, and his willingness to accept help from others and to freely share his wealth of knowledge of the law.

Criteria for eligibility for the Sterling Ambler Award include significant years of contribution to the Trust & Estate Section and the legal profession, as well as multiple areas of contribution, including but not limited to building connections between sections of the CBA, helping advance the legislative agenda of the CBA, participation in Trust & Estate Section committee meetings, assisting less experienced attorneys, and participation in professional organizations.

The nomination form is available here and must be submitted no later than April 30 to Melissa Schwartz, secretary/treasurer of the Trust & Estate Section, or Andrea Mueller Arias of the CBA.

Colorado Court of Appeals: Homestead Exemption Protects Farmland from Levy and May Also Protect Any Water Rights Appurtenant to the Land

The Colorado Court of Appeals issued its opinion in Shigo, LLC v. Hocker on Thursday, February 27, 2014.

Homestead Exemption Statute—Proper Interpretation—Writ of Execution—Exemption of Water Rights—Levying Shares to Satisfy Judgment.

Plaintiffs claimed that Hocker had operated a Ponzi scheme that defrauded them of more than $6 million. Hocker failed to defend the action, and the district court entered a default judgment against her. The parties then stipulated that Hocker would pay plaintiffs damages amounting to $4.4 million, plus interest. Plaintiffs were unable to collect from Hocker.

In an attempt to reach some of Hocker’s assets, they served Hocker with a writ of execution, seeking to levy Hocker’s shares in the Highland Ditch Company (Highland). Hocker owns an undivided 50% interest in two and three-quarter shares of Highland stock. The Highland shares represent Hocker’s right to use water that runs through a mutually owned ditch, a branch of which leads to a pond on the thirty-five-acre farm that Hocker owns with her husband.Hocker protested, and filed a claim under the homestead exemption, asserting that the shares could not be levied.The court denied Hocker’s claim of exemption, and Hocker brought this appeal.

Hocker argued that the district court erred in concluding that the homestead exemption “does not apply to water stock certificates,” and “does not preclude the seizure and levy of the Stock Certificates” at issue in this case. The homestead exemption for a “farm” includes not just the farm’s soil, but also the water rights appurtenant to the land. Shares of stock in a mutual ditch company represent water rights. However, because the record is not clear as to whether the water rights represented by the Highland shares are necessary to the use and enjoyment of the land in question as a farm, the case was remanded to the trial court for further findings on that matter.

Summary and full case available here.

Colorado Court of Appeals: Appropriate Remedy for Illegal Sentence is to Remand Case to Trial Court for Sentencing

The Colorado Court of Appeals issued its opinion in People v. Bassford on Thursday, February 27, 2014.

Sentence Illegal—Crim.P. 35(a)—Removal of Probation Requirement—Resentencing.

Defendant was charged in Denver District Court (case No. 02CR5403) with one count of violating the Colorado Organized Crime Control Act (COCCA), and with multiple counts of securities fraud and felony theft. He later was charged in Denver District Court (case No. 03CR4422) with one count each of felony theft, defrauding a secured creditor, and forgery. The cases were consolidated for trial, and a jury found defendant guilty of all counts ultimately tried.

The court sentenced defendant to twelve years in Department of Corrections (DOC) custody and then to twelve years of probation. On appeal, the forgery conviction was vacated, but the judgment and sentence were affirmed as to all other counts. Thereafter, defendant filed a Crim.P. 35(a) motion, claiming that the probation portion of his sentence was illegal. The trial court vacated the original sentence and then resentenced defendant to twenty-two years in DOC custody, plus mandatory parole; suspended the entire DOC sentence (giving defendant credit for a little more than twelve years of time served); and imposed twelve years of probation with the economic crime unit.

On appeal, defendant contended that his original sentence was illegal because the court ordered him to complete probation after his release from DOC custody, and that the district court erred by resentencing him rather than simply removing the probation requirement. Defendant’s original sentence was illegal, and the court was without statutory authority to suspend ten years of the eighteen-year DOC sentence on the condition that defendant complete economic crime probation after the initial eight years in the DOC. Although Crim.P. 35(b) authorizes a district court to reduce a sentence, the district court erred in relying on Crim.P. 35(b) to modify defendant’s sentence, because the court did not reduce his sentence. However, because defendant’s original sentence was illegal in its entirety, the appropriate remedy was to remand the case to the trial court for resentencing.

Summary and full case available here.

Colorado Court of Appeals: Colorado Consumer Protection Act Does Not Provide for Trial by Jury

The Colorado Court of Appeals issued its opinion in People v. Shifrin on Thursday, February 27, 2014.

Deceptive Trade Practices—Colorado Consumer Protection Act—CRCP 41(b).

The Attorney General (AG) brought this action against defendant, Leonid Shifrin, Jerry A. Johnson, and five companies with which defendant was involved. The complaint alleged a pattern of deceptive trade practices whereby defendants, acting in concert, fraudulently placed consumers in high risk “option” adjustable rate mortgage loans.

The trial court ruled that defendant was not entitled to a jury trial. The Colorado Consumer Protection Act (CCPA) does not provide for trial by jury. Further, based on the equitable nature of the relief sought under the CCPA, defendant was not entitled to a jury trial.

The trial court refused to stay the trial, pending resolution of federal criminal proceedings against him. The court did not abuse its discretion in this regard because the two proceedings had minimal overlap.

The trial court found a CCPA violation based on the testimony of representative witnesses, without requiring testimony from all thirty-seven borrowers allegedly harmed. Although the CCPA permits the AG to subpoena witnesses, the CCPA does not require the AG to elicit testimony from every consumer who was harmed to prove a violation. Thus, the question becomes whether the evidence was sufficient to prove a CCPA violation.

The trial court admitted the affidavits of borrowers who did not testify at trial. These affidavits constituted inadmissible hearsay, and allowing them into evidence was an abuse of discretion. However, because the trial court found that the affidavits were relevant only to determine the remedy for defendant’s violations of the CCPA, their lack of admissibility affects only restitution and disgorgement. Therefore, the amount of restitution awarded to the borrowers who did not testify was set aside. Further, the disgorgement also reduced by those amounts established through the affidavits.

Defendant contended that the trial court’s restitution award was barred by the credit agreement statute of frauds, CRS § 38-10-124. This statute requires the existence of a debtor–creditor relationship. Defendant, who was a mortgage broker, is not a creditor pursuant to § 38-10-124; therefore, it does not apply and the trial court’s restitution award was not barred. Also, the trial court’s formula for calculating restitution was within its discretion under § 6-1-110.

The trial court concluded that defendant was not entitled to a setoff for the amount paid by codefendant Johnson in settlement. Because tort damages are not recoverable by the AG under the CCPA, defendant was not entitled to a setoff.

The AG argued that the trial court erred in granting Shifrin’s directed verdict motion, because it applied the wrong legal standard. When an action is tried to the court without a jury, a directed verdict motion can be dismissed pursuant to CRCP 41(b). The standard for ruling on a CRCP 41(b) motion is “whether judgment in favor of defendant is justified on the evidence presented.” Because the court applied the wrong legal standard, the case was remanded for the court to consider the motion under CRCP 41.

Summary and full case available here.

Colorado Court of Appeals: Plaintiffs who Generate Nearly All Revenue Through “Use” of Airport May Be Assessed Percentage-Based Fee

The Colorado Court of Appeals issued its opinion in Colorado Airport Parking, LLC v. Department of Aviation on Thursday, February 27, 2014.

Ground Transportation Rules and Regulations—Privilege Fee—Airport Expenses—Reasonable Apportionment.

Plaintiffs own large parking lots located on private land proximate to Denver International Airport (DIA), and provide their customers with shuttle service to and from the airport. This dispute arose when defendants (department) implemented Rule 100.22 of its Ground Transportation Rules and Regulations, which assessed a “privilege fee” of 8% of the gross revenues of off-site parking lot operators (such as plaintiffs).

Plaintiffs argued that Rule 100.22 should be invalidated because it violated § 5-16(e) of the Denver Revised Municipal Code regarding allocation of airport expenses. After a two-day hearing, the hearing officer issued an order denying plaintiffs’ petitions. After reviewing the administrative record but without holding a hearing, the district court issued an order denying all of plaintiffs’ requests for relief.

Plaintiffs contended that the district court’s order must be reversed because the hearing officer misapplied the law in his determination that the department reasonably apportioned the expenses of the airport. Because plaintiffs generate all, or almost all, of their revenues through “use” of the airport—unlike taxis, hotel shuttles, mountain express vehicles, and limousines, which are not entirely dependent on the airport for their revenues—it is not unreasonable for the department to employ a different method to assess plaintiffs’ fees based on those revenues. Additionally, it is rational to use revenues as the basis for assessing fees and apportioning costs to users of airport facilities. Further, it is rational for the department to employ a revenue collection method that achieves cost savings. However, because the hearing officer did not make any findings on how the department arrived at the 8% figure, the case was remanded for further findings on this issue to determine whether the use of the 8% figure results in a reasonable apportionment of costs.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 2/27/2014

On Thursday, February 27, 2014, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

United States v. Tanner

Gawlas v. Monday

United States v. James

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.